The D.C. Circuit reversed some U.S. Environmental Protection Agency vetoes of state air quality plans that gave power plants and other facilities a break when they exceed air emissions limits when they're starting up, shutting down or malfunctioning, but the court's decision wasn't a complete loss for the EPA and opened avenues for new litigation.
The litigation stemmed from the EPA's decision to reject, or "call," several states' Clean Air Act implementation plans for issues with the treatment of emissions during facilities' startup, shutdown and malfunction — or SSM — phases, which often cause pollution above what permits allow.
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There's more to it than that, though, according to Todd Palmer, a partner at Michael Best & Friedrich LLP and co-leader of the firm's regulatory and environmental and natural resources practices.
"On some levels, I suppose it does make it easier for [the EPA] that they don't have to make this factual determination," Palmer said.
But he noted that deeper in the opinion, the court found that some of the EPA's SIP calls based on states' startup, shutdown and malfunction policies were improper because the agency failed to complete an important step in the process.
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Preview Attorney's BiographyFor more than 30 years, Todd has helped numerous clients remain in compliance with all aspects of the complex and dynamic suite of environmental laws, with a particular focus on Clean Air Act regulation. His extensive knowledge of and experience includes obtaining environmental permits, planning future activities to minimize the expense of regulation, litigation involving all manner of environmental regulation, and the defense of allegations that a company may have violated environmental laws.